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SPEECH 

OF 

MR. THOMAS, OF MASSACHUSETTS, 

ON 

c o ]sr F I s c ^ T I o jsr . 



DELIVERED IN THE HOUSE OF REPRESENTATIVES, MAY 24, 1862. 

The House havinsr under eonsiileration the bills to confiscate the property and free from servitude the 
slaves of rebels, Mr.' THOMAS, of Massachusetts, said : 

Mr. Speaker: Before proceeding to the dii^cussion of the measures before the House, I 
liO[ie i may be pardoned for niakiiis; one or two preliminary suggestions. At as early a 
day as December, 1860, I exjireesed my earnest convictioi> of the course to be pursued by 
t)>e Government and people of this country in relation to secession — tliat it was but 
anotlier and an unmanly form of ivbellion, and tliat it must be met at the threshold and 
crushed by arms; that after an ordinance of secession, as before, it was the duty of the 
Government to execute, in every part of this indivisible Republic, the Constitution and 
the laws. 

But I believed then, and believe now, that the life of the States is just as essential a 
part of this Union as the life ot tlie central power; that their 1 fe is indeed one life; and 
when the gentleman from New York, [Mr. Sedgwick,] yesterday assured the House that 
the statement made by me in a former sjieech, "that when the conflict of arms ceases the 
nation will retnain, and the States will remain essential parts of the body politic," " was 
one of those old and audacious propositions which cannot fail to shock the common sense 
of mankind," 1 felt that either he or I had wholly misconceived the nature and structure 
of the Government under which we live. E plwribus unum. Of many States, one nation. 
The Union is not a graveyaid for the burial of dead common wealths. The body politic 
is safer with a severed limb than with a dead one. But the gentleman fr im New York 
has made progress in this doctrine of State suicid^e, and assures the House not only of the 
death of the States, but that the people "by permission of the military power, and not 
befoi'e," can form new goverments and seek again admission here. Mark the words, "by 
permission of the military power, and not before." Where are we drifting, Mr. Speaker, 
and what is the end. These are not hasty words, but the deliberately uttered language 
of one, who no less by culture and capacity than by your appointment, is a leader of the 
House. "By permission of the military power, and not before." I repeat the quescion, 
where are we drifting, what is the end?- 

I was guilty of another audacious act in the view of the gentleman from New York. 
I awoke St. Paul from the dead to give countenance to my doctrine. The gentleman must 
pardon me, Mr. Speaker; I must be an old fogy. It never occurred to me that the epis- 
tles of Paul were among the dead things of the past. I sup[)osed they were the well- 
springs of immortal life, and, like the gospels, the same to-day, yesterday, and forever. 
I am bound to presume this was a heedless remark, for I am sure the gentleman can have 
uo symjiathy with the new school of philosophy which has outgrown the Gospel, and 
which, making equal war with the Christian church and with' the Union, has issued the 
new evangel, in which abstract love of the race is substituted for practical love of our 
neighbor, confusion for social order, freedom from restraint for the liberty of obedience. 
But let this pass. 

Mr. Speaker, no man can desire more earnestly than I do the suppression of this rebel- 
lion, and the restoration of order, unity, and peace. But there are two things I cannot, 
I will not do. I will not trample beneath my feet the Constitution I have sworn before 
God to support. 1 will not violate even against these rel)els, the law of nations as recog- 
nized and upheld by all civilized and Christian States. I believe 1 tnust do both to vote 
for these bills, and at the i*{ime time do an act unwise and especially adapted to defeat 
the enil in view, if that end be the restoration of the Union and the salvation of the 
Republic. 

I propose very brieflv to examine the bills before the House (and especially that as to 
the contiscation of property) under the law of nations and under the Constitution of the 
United States, and then to say a word upon their policy. 

The positions assumed by the friends of these measures are, that we may deal with 



2 •' 

those engaged in tliia rebellion as public enemies and as traitors ; that regarding them as 
eneraiej, we may use agains^t them nil the powers granted by the law of nations; and 
viewing them as rebels or traitors, we ma}' use ag;iiiist them all the powers granted by 
the Constitution; and that in either view, these bills ean be sustained. 

Dealing witli them as public enemies, it is said that under the existing law of nations 
we have a clear right to confiscate tiie entire private property on the land as well as the 
sea, real and pei'jjpual, of tliose in arms, and of non combatants who may in any way give 
aid and comfort to the rebellion. This first bill sweeps over the whole ground. I deny 
tiie proposition, Mr. S[)eaker. In the name of that public law whose every humane sen- 
timent it violates; in the name of that civilization whose amenities it forgets and whose 
progress it overlooks; in the name of human nature itself whose better instinctt it out- 
rages, I deny it. Such is not the law of nations. 

To give a plausible aspect to the proposition, the advocates of this bill have gone back 
to Grotius and to Bynkershoek for the rules of war, and even then have ommitted'to give 
what Grotius calls the tanperamenta, or restraints upon the rules. You might as well at- 
tempt to substitute the code of Moses for the beatitudes of the Gospel. Anything ean be 
established by such resort to the authorities. By the older writei-s you can prove not 
only all the property of the. vanquished may be taken, but that every prisoner may be 
put to death. By Grotius 1 can show that all persons taken in war are slavey and that 
this is the lot even of all found within the enemy's boundaiies when the war broke out; 
that this iron I'ule applies not to men only, but to their wives and children ; nay, further, 
that the master has over the slaves the power of life and death. {De. Jure Belie et Pads, 
book 3, chap. 1, sees. 1, 2, and 3.) I cite a short passage from the chapter referred to. 

" The effects of this riglit are unlimited, so that the master may do anything lawfully to the slave, as 
Seneca says. Tliere is no suffering which may not be inQicted on sucli slaves with iiiipiniity ; no act 
.which may not in any manner be commanded or extorted : so tliat even cruelty in liie masters, towards 
■persons of servile coudition, is unpunished, except so far as the civil law impcwes limits and punishments 
for cruelty. In all natiims alike, says Caius, we may see that tlie masters have the power of life and 
death over slaves. He adds attei'wards that by the Roman law limits were set to tins power, that is, on 
Koman gromid. So Douatua in Terence, 'what is not lawful from a master to a slave?'" 

By Bynkershoek you may establidi that the conqueror has over the vanquished the 
power of life and death, and the power of selling them into slavery ; that everything is 
lawful in war; the use of poison and the destruction of the unarmed and delenceless. — 
(Law of War, Duponceau's translation, pp. 2, 18, 19, 20.) 

But what then, Mr. Speaker? Does any^man suppose that these writers give us the 
laws of war as upheld, sanctioned, and used by the (Jhristian and civilized States of to- 
day? Nothing would be further from the fact. Commerce, civilization. Christian cul- 
ture, have tempered and softened the rigor of the ancient rules ; and the State wliich 
should to-day assume to put them in practice would be ati outcast from the society of na- 
tions. Nay, more, they would combine, and rightfully combine, to stay its hanii For 
the modern law of war, you must look to the usages of civilized States, and to the pub- 
licists who have explained and enforced them. Those usages constitute theiuselves the 
laws of war. 

In relation to the capture and confiscation of private property on the land, I venture 
to sav, with great confidence, and after careful examination, that the result of the whole 
matter has never been belter stated than by our own great publicist, Mr. Wheaton: 

" But by the modern usages of nations, which has now acquired the force of law, temples of religion, 
public edifloes devoted to civil purposes only, monuments of art, and repositories of science, areexemp'ed 
from tlie general operations of war. Private property on land is also e.xempt from coiifise.-xtion, witti tlie 
exception of such as may become bo.)ty in special eases, when talcen from enemies in tlie field or in be- 
sieged towns, and of military contributions levied upon the inhabitants of the hostile territory. This ex- 
emption extends even to the case of an absolute and unqualified conquest of the enemy's country.'' — Eler- 
tnenis of Internatioiial Lino, p. 421. 

It is not too much to say that no careful student of international law will deny that 
this passage from Mr. Wheaton fairly expresses the modern usage and law upon the sub- 
ject; but you will permit me to refer for a moment to the doctrine stated by my illus- 
trious predecessor, whose name has been so often invoked in this debate, John Qumcy 
Adams. "Our object," he says, in a letter to the Secretary of State, "is the restoration of 
all the property, including slaves, which, by the usages of war among civilized nations, 
ought not to have been taken." "All private property on shore was of that description. It 
was entitled by the laws of war to exetuption frota capture." (Mr. Adams to the Secre- 
tary of State, August 22, 1815.) 

Again, he says, in a letter to Lord Castlereagh, February 1*7, 1816: 

" But as by the same usages of civilized nations private property is not the subject of lawful ciipture in 
■war upon the land, it is perfectly clear that in every stipulation private proi)erty shall be respected, or that 
upon tlio restoration of places during the war, it shall not be carried away.' — i Amerioan Utate Paperit, 
pp. 116, 117, 122, 123. 

A volume mis;ht be filled with like citations from modern writers. I will content my- 
self with [lerhaps the latest expres.siun, and from a great statesman, a native of Massachu- 
setts, and of my own county of Worcester : 

IN EXCHANOE 



" The prevalence of Christianity and the progress of civilization have greatly raitigated the severity o.f 
the ancient mode of prosecuting hostilities." * * * * " It is a generally received rnle o 
modern warfa'-e, so far ai least as ooeratioris upon land are concerned, that the persons and effects of non- 
co'iihatanis are to he respected Tne wan on jtilhi'^e or uucoinpensated appropriation of individual prop- 
erly by an army even in possession of an enemy's country, is a'j;ainst the usus;"* of modern times. Such 
a procei-diu^ at tliis day would he onderaned by tlie ealiijhtene.i ju lament of the world, unless warranted 
by particular circumstances. Every consideration which upholds this conduct \a regard to a war on land 
favors the application of the same rule to the persons and property of citizens of the belligerants found 
upon the ocean.'' — Mr Marcy to the Count de Sartiges, July 28, 1856. 

Such I believe to be the settlecl law and usage of nations. A careful examination of 
the arguments made on this subjeet has served but to strengthen and deeiien this conviction* 

I do not forsret, Mr. Speaker, that the case of Brown vx. The United States, (8 Craneh. 
110,) has been often referred to in this debate as affirming the contrary rule. The points 
decided in that case I iiave before stated to the House. The points, the only points, de- 
cided were, that British property found in the United States on land, at the eommence- 
mentof liostilities, (war of 1812,) could not be eondetnned as enemy's property without 
an act of Congress for that purpose, and that the declaration of war was not sufficient. 
Gentlemen have referred to the obiter dicta, the discussions of the judges, as the decision, 
of tlie court. The distinction is familiar and vital, but has been lost sight of in this de- 
bate. Only the points necessarily involved in the result constitute the decision. Let me 
illustrate the matter by a familiar case, that of Di-ed Scott. It is the matter outside of 
the decision, wiiat a distinguished jurist has called the slopping over of the court, that 
was so fruitful in mischiet. The point decided. by the majority of the court was, that 
Dred Scott was not a citizen of Missouri, so as to be able to maintain an action in the 
courts of the United States upon the grounds of such citizenship. Under the conflicting 
decisions iu the courts of Missouri, I have always thought that case might have been de- 
cided either way without attracting public attention or animadversion. All that was 
said outside of that point has no roore legal force than the paper on which it was writ- 
.ten. Use the saying of the judges iu that case as they have used those in Brown vs. The 
United States, and you can establish the rightful existence of slavery in the Territories, 
the invalidity of the Missouri compromise, and, God only knows, how many other errors 
in history and law. Ireat what is said by the majority of the court outside of the point 
decided as argujient — and it is nothing more — and slavery in the Territories is without 
any legal prop or support. And I may saj', in passing, Mr.-Speaker, there never was 
in my judgment a plau-<ible argument even to establish the power and right of the mas- 
ter to take iiis slave into the Territories and hold him in servitude. Slavery exists by 
local law and usage only. It has no extra territorial power. The moment the slave, 
with the consent of the master, is taken beyond the line of the place where the law tol- 
erates its existence, the chains fall from his limbs. Property in the slave there may be 
by local municipal law, but not by the law of nature and of nations, not by that univer- 
sal, immutable law of which Cicero speaks so divinely in the Repuhlic. May I give the 
Latin, Mr. Speaker? '■^ Nee erit ilia lex Romce, alia Atheni, alia nunc, alia posthac ; sed 
et oinnes gentes et omni tempore una lex sempitema et iimnutabilis cotitinebif." Nobler 
thf)ught in nobler words never fell from human lips or pen. 

But I return from this digression to say, Mr. Speaker, that the distinction sought to be 
established b\ the passages cited from tlie discir-^sious in the case of Brown y.s\ The United 
States, between the law of war and the mitigations of that law which the usages of 
modern nations have introduced, has no foundation in principle. It is in the usages of 
civilized and Christian nations that we are to seek the law of nations. As the law-mer- 
chitit has gr<iwn up from the usages of trade and commerce, so has the modern law of 
nations grown up from the usages of enlightened States. The ancient barbarous pules of 
war have been tempered and softened by commerce, by the arts, by diffused culture, and, 
more than all, by the spirit of the Gospel; and all Christian States recognize with joy 
and with obedience the milder law. In the jurisprudence of nations, as in our own, there 
is one law felt above all others — the law of progress. Apparently at rest, it is ever 
silently moving onward, quickened, purified, and illumined by the inspiration of that 
higher law, ' whose seat is the bosom of Goil, and its voice the harmony of the world." 
The great prophetic thought of Palcal may yet be realized — " Detix lois sajfisent pour 
regler I a repuhlique chretienno, mieux que toutes les lois poliliques : Vamour de Dieu, et 
celui dii prochain." 

t do not know that I can more fitly conclude what I can say, in the brief time allotted 
to me, on the ca])ture and coniiseation of the private property of rebels, viewed in the 
light of international law, than iu the words of John Marshall, ncir the close of his judi- 
cial life : 

" It may not be unworthy of remark that it is very unusual, even in cases of conquest, for the con- 
queror to do more than to displace the sovereign and assume domiaioa over the country. The modera 
usage of nation.s, which has become law'" — 

mark the words, Mr. Speaker, "the modern usage of nations, which has become law" — 
" would be violated : that sense of justice and of right which is acknowledged and felt by the whole civi- 
lized world would be outraged, if' private property should be generally ooufisealod and prn alv- r!^;lits 



/innulled. The people change their alTegiance ; their relation to their ancient sovereiari is dissolved ; bnt 
their relations to each other and iheir rights of property remain iiiidistKirhed. If this be the modern rnie, 
even in cases of conquest, who can doubt its applicaliuD lo the case of an amicable cession of terri- 
tory ?'' — United States vs. Percheman, 7 Peteris,51, 

It is against the ligjit of these consifleiations^and authorities, atul against the prevnilin^ 
law and jiKigment of the Christian world, that it l)as been so often coiilideiitly, i will not 
say flippantly, asserted on this floor that there could be no doubt of our power, nnder the 
law of nations, to seize and confiscate tlie entire property of the rebels a.s public eneinie.s. 

I pass to the second branch of the subject — our power, under the Constitution, to pass 
these bills. It has been often said, in tl)e course of this debate, and in terms without 
qualification, that the rebels hold to us the two-fold relation of enemies and traitors, and 
that we may use against theni all the appliances of war and ail the penalties of municipal 
law. To a certain limited extent,-the proposition is sound Treason consists in levying 
war against the United States. The act of treason is an act of war, and you use the 
powers of war to meet and subdue traitoj-s in arms against the government. 

It is also true that, in the relations between the Ooverniuent and its subjects, the 
rightful power of punishment does not necessarily cease with the war; but is it also 
true that you can exercise both powers at the same time? And is not here the utter 
fallacy of this whole argument? Take an example. You have been accustomed to ^x- 
cliange fla<js of truce; you have recognized, to a certain extent, belligeient powers. An 
ofiicer of the rebel army comes to j-ou unde)' a flag of trt^ce : can you take hi n from 
under that flag and hang him for treason ? He stands to you in the double relation of 
enemj' and traitor, but you cannot touch a hair of his head while he is under that white 
flag. Take another case You have sti|nilated for an exchange of ))r goners of war. 
The cartel has been sent, and the prisoner of war is on hi< way to make the •exchange. 
Does any man on this floor say that you can rake him on his way and try and hang him ? 
And if not, why not? The plain answer is, because baviiig lecogi ized him as under, 
the law of nations, while he is subject to its power, lie is entiiled to its jirotection. 

Pass what bills we may, Mr. Speaker, when the war is ended these questions will come 
up to be settled. 1 hope 1 may be pardoned f6r saying, with great respect, to my li-iends 
ou all sides of the House, that they vvill be as difficult questions as statestnen or jurists 
"were ever called upon to decide, and that it is wise to i-eserve, as far as possible, our 
judgment. iSo thoughtful man will content himself with the declaration that belligerent 
rebels have no rights. Passion may say that, reason never. Passion, sooner or later, 
subsides, and i-eason reascends the judgment seiit, aiid these (juesiions nnii-t be answeied 
there and to that august tribunal before which the conduct of men aiid nations passes in 
view — the enlightened opinion of the Christian world. Such questions are, how far, 
Jlagrante bello, (while war was raging,) with respect to prisoners of war the civil power 
was restrained ; how far the treating with rebels and exchanging them as pi-isoners of 
■war may affect their punishment as traitors, either in person or property. 1 express no 
opinion, except to say they must be calmly met and answered. 

But assuming, for the sake of the argument, that during the war even, and while rec- 
ognizing their belligerent rights, you may visit upon the rebels the full foi-ce and weight 
of the njunicipnl law, I proceed to iiiquire whether the mode proposed by these bills is 
in conformitj' to the organic and supreme law, the Constitution of the United States. I 
am not to be deterred from the discussion by anv suggestions from wt^ak or wicked men 
— none other can moke them — of leniency Lo rebels and compassion f'r traitors. There 
is but little elevation in contempt, but such suggestions do not rise high enough to meet 
it. They pass by me as the idle wind. If a man has no other arrows in his quiver let 
him use these ; I am content. 

The favorite argument, Mr. Speaker, of those who claim for Cmgress the power to con- 
fiscate the property of traitors without trial by jury is, that the want of this power would 
show a fatal weakness in the Constitution and a lack of wisdom and foresight in its 
framers. They will not believe the Constitution is so weak and helpless, so incapable of 
self-defence. Nothing, in my judgment, so shows its majesty and strength, pray God, 
immortal strength. The powers of war are almost infinite. The resources of this vast 
country spring to j-our open hand. All that men have, even their lives, are at the service 
of their counii'}- ; and in this great conflict how nobly aod freely given. You can raise 
an army of seven hundied thousand men; you can give them all the best api)liances of 
war; you can cover your bays and rivers and seas with yottr Navy ; yoti can blockade a 
coast of three thousand miles; you may cut down the last i-ebel ou the field of battle. 
Such is the power of war. But, Mr. Speaker, wheti you sliall have used all these powers, 
when peace shall have been restored, or when the rebels shall come and lay themselves 
at your feet, or be taken cajdive by your arms, then, also, will the power of thtit Consti- 
tution be made manifest; then, also, will this Government be shown to be the most pow- 
erful and the noblest on the earth, not because the captured rebel is at your mercy, but 
because he is not. Because, under the shield of the Constitution, the rtbel at your feet 
is stronger than armies, stronger than navies. You cannot touch a hair of his head or 



take from hira a dollar of his property unlil you shall have tried and condemned him by 
the judgment of his peers and by the law of the land. Does this show tlie weakness of 
the Constitution, or does it siiow its transcendent strength? Are these written constitu- 
tions established t" ijive to Government power, without limit, over the property, liberty, 
and life of the citizen, or are tliey made to deline and limit the power of the Governmeut, 
and to shield and ju'otect tlie rights of the subject? 

1 have Hlways been taught that the people is the sovereign; that these constitutions are 
carefully-defined pnpared grants from the sovereign power, so framed as to establish justice, 
and at the same time secure the blessings of liberty and the protection of law even to the 
humblest and meanest citizen. I know, Mr. Speaker, that these are getting to be old- 
fashioned sentiments. JVlagna Charta is soiled and worm-eaten. The Bill of Right-s, the 
muniments of personal freedom, habeas corpus, trial by jur}', what are they all worth in 
compaiison witli this new safeguard of liberty, the proceeding in rem. 

Were you ever at Runnymede, Mr. Speaker? I remember going down, on a beautiful 
day in htly, from Windsor Castle to tlie plain, and crossing the narrow channel of the 
Thames to tliat little island on which, more than six centuries ago, in the early gray of 
morning, those sturdy barons wiested from an unwilling king the first great charter of 
English freedom — the germ of lift* of the civil liberty we have to-day. I could hardly 
have been more moved had I stood in the village and by the manger in which was 
cradled "the Son of Mai'y and the Son of God." From the gray of that morning 
sti'e.'imed the rays which, unliftii g with the hours, coursing with the years, and keeping 
pace with the centuries, have encircled the whole earth with the glorious light, of English 
liberty. The liberty for which our fathers planted these Commonwealths in tlie wilder- 
ness; for which they went through the baptism of fire and blood in the Revolution; 
wliicli ihey inibed<led and hoped to make immortal in the Constitution ; without which 
the Constitution would not be worth the parchment on whicli it was written. 

But I must not linger \>y the way, Mr. Speaker. What do these bills propose? The 
immediate object is to confiscate the [uoperty ()f the rebels. For what end? For pun- 
ishment, as it not? if yim strip the!<e men of their propei'ty, it is not because they are 
innocent, although this bill does, in fact, confiscate the property of persons who mny be 
guiltless of any offence. But the theory of the bill is to punish men for the crime of re- 
bellion, or treason, or give it what name you will. The bill, indeed, recites, as an ulterior 
purpose, the payment of the expenses of the rebellion. But there is no man on this 
floor so verdant as to suppose this means much. If the courts enforce the statute, il 
believe they will not.) how much treasure can you wring from those States, poor at the 
best, but whom the close of this war will leave impoverished, seai'ed, and swe[)t, as by 
fire? You might as well pasture your cattle on the desert of Sahara. The land will 
indeed be left, but who will be your purchasers, when they know they must take at the 
best a doubtful title, but a sure, bitter, and lasting feud. The sti'ife and hate growing 
out of the confiscations of the Revolution are scarcely yet appeased, and it was with 
these confiscations fresh in the memories of the framers of th.g Constitution that the lim- 
itation of the power of forfeiture was adopted. There never was a wilder dream than 
that of paying the expenses of the rebellion with the fruits of confiscation. 

The re;il object of the bill is punishment, the punishment of an offence clearly defined 
in the Constitution, of the highest offence known to the laws. The punishment is the 
forfeiture of the propeny of the offender. The forfeiture is to be established before ju- 
dicial tribunals, and upon proof of the guilt of the owner. You have, then, these three 
elements: punishment — upon pi'oof of the commission of crimes — before a judicial tribu- 
nal. One element' is wanting. One has been diligently excluded — trial by jury. Hu- 
nian ingenuity ha* been exhausted to shut the door against it, and your bill is like Hamlet 
with the Prince of Denmark omitted by particular reqii.est. Here is the plain, impera- 
tive mandate of the Constitution, which he who run may read : 

'•The tri.il of all crimes, except in cases of impeachment, shall be by jury." — Constitution, article 
3, section 2 

The property to which the bill applies is not, under the law of nations, prize, it is not 
bootj', it is not contraband of war. It is not enforced military contribution. It is not 
property used or employed in the war or in resistance to the laws, and, therefore, clearly 
to be distinguished from that covered b}' the statute of August 6, 1861. It is private 
property outside of the conflict of arms, forfeited not because it is the instrument of of- 
fence, but as a penalty fur the crime of the owner. The disguise of the proceeding in rem 
is too thin and transparent. Ko lawyer, no man of common sense will be deceived bj- it. 
The proceeding, in spirit, in substance, and in effect, is the punishment of treason by the 
forfeiture of a man's entire estate, real and personal, without trial by jury, and in utter 
disregard of the provision of the Constitution which limits the forfeiture for treason to the 
life of the person attainted. (Article 3, sect-ion 6.) 

Was there ever a balder contrivance to aei around the plainest and most sacred pro- 
visions of the Constitution than this attempt to get a man's farm, his cattle and fodder. 



6 

bis plow, spade, and lioe into a maritime court and try them by the law of prize? With 
all respect for my excellent frien'ls upmi the committee, such a proposition "shocks our 
common sense" as well as our- sense of justice and rii^iit. You rnakt' the plea of necessity, 
and necessity is the mother of invention ; but do \ou expect to siitisfy sensible men, when 
reason resumes its sway, that under a Constitution wliich defines treason to consist in 
levyina; war against the United States, whicli will not suffer the traitor to be condemned 
except bj- the judt^ment of his peers, and when condemned will not forfeit his estate ex- 
cept during his life, you can, by this proceeding in rem, without indictment, without trial 
by jury, without the proof of two witnesses, (article 3, section 3,) for ti'eason, for the act 
of levying war, deprive him of all his estate, real and personal, for life and in fee? Nay, 
mote; and tliat, after he has thus been punished, witiiout ti'ial by jury, and by the loss 
of his wliole estate, you can, foi' the same act of levying war, tiy him and hang him? 
To suggest a doubt whether, after all, this is plain sailing under the flag of the Constitu- 
tion, is to have too nice constitutional scruples! 

I have touched but upon one or two legal objections to these bills. Their name is legion ; 
but I must hasten to a more minute examination of the .bills themselves. I do not wish 
to say the bills are hastily drawn. If right in principle, defects of form, or want of de 
tail, can be supplied. In attempting however legislation involving a new principle', or 
a new a[)plieation of a principle, it is a pretty good test to let it be I'un ihi'ough the 
machinery of a carefully -drawn statute, and see how it works. 1 should have liked that 
test applied here. 

Looking now to the general features of the confiscation bill, I desire the House to ob- 
serve that the bill, though not in form, is in substance and effect retroactive. It takes 
effect fi'om its passage. It applies to all acts committed after its passage. As there are 
■whole districts. States even, where the law cannot be promulgated, and who will remain 
in ignorance of its passage, the law, as to them, will be ex pout facto. They will neither 
know, nor !iave the means of knowing, of the existence of the penalty wlien the act is 
committed. Will you say it is their own fault? I beg you to consider that, since your 
protection has been lost and until it is restored, there has been and can be no really free 
choice with the individual citizen whom he shall obey. What measure of punishment 
would you meet to a citizen of Jacksonville, who, after the withdrawal of your army, 
should yield to the powers that be, tliough certainly toot ordained of God. 

1 ask t lie attention of the House, and a just and hiitnane people, if these words shall ever 
reach them, to the wide sweep of this bill. You would infer from the ai'guments of its friends 
that the bill was to reach only the leaders and instigators of rebellion. How, if that 
were so, the limitation and the payment of the expenses of rebellion from confiscation 
would hang together, has not been explained. But X\\& fact is far otherwise. 

The first section includes several classes, and first, all officers of the rebel army or navy, 
non-commissioned as well as commissioned. Officers of high rank should be included; 
but there is no sound reason whatever for going down to sergents and cor|)orals. The 
second, third, and fourth glasses embiace persons who shall hold certain offices in the 
confederate States, or any of them, including judges of the State courts and members of 
State Legislatures and conventions. In all these cases the mere holding of the office is made 
the ground of confiscation, without regard to the manner iu which the duties shall be 
discharged, or to whether those duties involve any activeservice against the national Gov- 
ernment; men, it may be, whom the rebelliou found in oHice and who continue in the 
regular exercise of their functions. Here, for example, is the judge of probate or surro- 
gate of a county. Rebellion breaks out; men will die and estates must be settled and 
care had of widows and orphan.s. To visit this man with the confiscation of his estate 
for continuing quietly to discharge his duties, is equally harsh and absurd. 

The same remark applies, possibly with increased force, to persons embraced in the 
fifth class, those holding any olfice oi- agency under any of the States of t|he confederacy 
or any of the laws thereof, whether such office or agency be State or municipal in its 
name or character. Every justice of the peace, notary public, or town clerk, treasurer, 
selectman, assessor, conslable, overseer of the poor, undertaker, even, must resign his 
functions or become a pauper. The result, if successful, is a suspension of civil order, 
or, on the other hand, the severest punishment for a venial offence, if it be an offence. 

Tlie second section includes a 1 persons who. being engaged in rebellion, or aiding and 
abetting it, shall not, within sixty days after proclamation from the President, desist and 
return to their allegiance. Sixt,y days seems to be a reasonable notice ; but if the parties 
are in such condition that the notice cannot reach them, then it is not notice. What may 
be fairly and justly required is that men shall return to their allegiance the moment they 
have reasonable assurance of jiermanent protect'on from the national Government. It is 
idle to look for it before such protetition is possible. To ask a man in the interior of a 
cotton State to abjure tlie rebel Government and return to his allegiance in the present 
condition of things, is to ask a moral impossibility. To confiscate his property for not 
doing so, cannot be justified. 

A word upon another harsh feature of the bill. With respect to every person withia 



its scope, and without the least discrimination as to degrees of guilt, a clean sweep of 
property is made. There is no exemption of necessary household furniture, or of pro- 
visions, or of tools of trade. Nothing is spared — the bed on wliich the wife sleeps, the 
cradle of the child, the poik, or flour barrel. Taken in connection with the fact that the 
bill declares tliatthe President shall cause the seizure to be made, and not merely that he 
■mail, that j)rovision is made for the sale of pei'isliable propert}', and that none is made 
for the remission, in wliole or part, of the forfeit\ire, and we cannot fail to understand the 
spirit ill wliicli the bill is conceived, or the iinpression if. will not fail to muke on the 
friends of this country ahroad, who cannot fully appreciate the bitterness which civil 
conflict erigerders, or, if they do, will not pardon statesmen for yielding to its influence. 
It is plain that the angel of mercy never found his way to the eomuiittee room ; oi-, if he 
went in with my friend from Kentucky [51r. jMallouy,] or my friend from New Jfti'sey, 
[Mr. Cobb,] he was politely bowed out, with the assurance that neither rebels nor those 
dependent upon them had any rights. 

I ought, however, to add, Mr, Sj^eaker, that looking upon seizui-e and confiscation as a 
penalty for crime — treason or rebellion — the President, under his general power of par- 
don, might remit the punishment. But then the other conclusion will follow, that with- 
out trial by jury, no valid forfeiture can be effected. 

The second bill, for the emancipation of the slaves of rebels, is much broader ia its 
geo]!e, including every person who shall engage in i-ebellion or aid and abet it. The in- 
serliou of the word "wilfully," lawyers will see, does not affect the h-gal construction. 
Tiiere are consideiations of humanity in favor of this bill which do not apply to the first; 
but it is not restricted to slaves used in the rebellion, and no form of judicial proceeding 
is provided. The constitutional objections apply to it with at least equal force. 

That the bills before the House are in violation of the law of nations and of the Con- 
stitution I cannot — I saj- it with all deference to others — I cannot entertain a doubt. 
M}' path of duty is plain. The duty of obedience to that Constitution was never more 
imperative than now. I am not disposed to deny that I have for it a superstitious rev- 
ei'ence. I have "worshipped it from my foreiathers." In the school of rigid discipline 
by which we were prepared for it, in the struggles out of which it was born, the seven 
years of bitter conflict, and the seven darker years in which that conflict seemed to be 
fruitless of good, in the wisdom with which it was constructed and first administered 
and set; in motion, in the beneficent Government it has secured for more than two gen- 
erations, in the blessed influences it has exerted upon the cause of freedom and humanity 
the world over, I cannot fail to recognize the hand of a guiding and loving Providence. 
But not for the blessed memories of the past only do 1 cting to it. He must be blinded 
with excess of light, or with the want <>f it, who does not see that to this nation, tremb- 
ling on the verge of dissolution, it is the only pos-ible bond of unity. With this convic- 
tion wrought into the very texture of my being, I believe I can appreciate this conflict, 
can understand the necessity of using all the powers given by the Constitution for the 
suppression of this rebellion. They are, as I believe, and as the progress of our arms at- 
test ample for the purpose. I do not, therefore, see the wisdom of violating or im[)airing 
the Constitution in the effort to save it, or of passing from the pestilent heresy of State 
secession to the ecpially fatal one of State suicide. The fruits of the first are anarchy 
and perpetual border war; of the second the growth of military power, the loss of the 
centrifugal force of the States, the merging of the States in the central Government; a 
republic in name and form in substance and effect a despotism. 

Mr. Speaker, at a time like this the individ'ial is nothirrg, the country every thing. He 
cannot truly serve or love his country who is anxious about himself. He cannot have a 
single eye to the welfare of the Republic if both eyes are turned homeward. He caimot 
keep step to the music of the Union who is grinding fantasias for the village of Bun- 
combe. One may desire, however, not to be wholly misunderstood. It has been said that 

I am opposed to auy emancipation of the slaves of rebels. Nothing can be further fi'om 
the truth. The first provision for emancipation, that in the statute of August 6, 1861, 
liberating all slaves employed in the rebellion, I drew with my own hand, believing now, 
as then, that it is valid and just. For the abolition of slavery in this District, for the in- 
terdiction of slavery in the Territories, for the new article of war forbidding the officers 
of the army to surrender fugitives from service, my votes are on record. 1 vi^ted for the 
resolut^.ion recommended by the President for aid to the States in the work of gradual 
emancipation, though I could not fail to see that it was on the verge of authority, and 
must perhaps finally rest, like the purchase of Louisiana, upon general consent. My 
views of the power of the Commandei- in-Chief on the subject of emancipation are fully 
stated in remarks submitted to the House on the 10th of April. I will not repeat them. 
They are ample for any eiuergency. In the bill I introduced "for the more effectual 
sup|,iession of the I'ebellion," but which, in the present temper of the House, I thought 

II useless to press. 1 have indicated a pracical method by which the slaves of rebels may 
be emancipated, as the penalty for crime, upon conviction or defaalt of the ofTeuder. 
But, Mr. Speaker, I have kept my eye steadily upon the end for which this war is waged. 



8 

the ouly end for which it can be justified— the integrity of the Union. I have firmly 
resisted, and shall continue firmly to resist, every elfurt, open or disguised, to convert 
tliis war for the Union into a war for emancipation, at ihe risk— no, not at the ri.-k, for 
the words do not express what I mean or feel ; with the moral certainty— of defeating 
the purpose for which the war was begun. With thyse convictions, it is"scarcely neces- 
sary to say I cordially approve the course of President Liucolu in modifying the procla- 
mation of General Fremont, and declaring null and void the order of General Hunter. 
For tiie wisdom and patriotism which have illustrated the course of this great uia-nstrate 
he has my sincere res|)ect ani gratitude. ° 

A word upon the policy and wisdom of these measures: A great work has been done 
by this nation. It is easy to find fault. In operations upon so large a scale, requirinL' 
so many agencies, mistakes and blunders will be made. But a just criticism, looking 
upon the work as a whole, cannot fail to commend the patriotism of the people' and the 
energy of the Government. I know it has been prettily said that we have prosecuted 
this war upon "a rose-water policy." I do not know that I fully comprehend what is 
meant, but probably the rebels, in view of that long blockade, wiih the fresh memories 
of Port Royal, .Newbern, Pulaski, Dtmelson, Pea Ridge, Shiloh, the Lower Mississijipi, 
and Yorktown, and the ever tightening folds of the constriction, might sav, with Juliet' 
the & J. 

" rose 

By any other name would smell as sweet.'' 

Oar armies and navies are victorious. The war seems tt) be drawing to a close. Th<vr«. 
is reasonable ground to hope that before the next session of Congress the power of the 
rebellion will be bioken, and the sword have substantially done its work. But 1 cannot 
conceal from myself that our great difficulties lie beyond the conflict of arms. It is the 
part of wise courasre to look them calmly in the face, to gauge them, and gird up our loins 
to meet them. Action will be needed, not words; judgment, not pas^ion. Uidess there 
be calm and fearless statesmanship, your victories will have been won in vain — a statesman- 
ship that honors and re-'pects the people, but is willing to nbide its sober second thought. 

Civil wars, like family feuds, have been fierce, bitter, and unrelenting. The bitterness 
and ferocity manifested towards us by the rebels cannot but arouse the spirit of retalia- 
tion and thirst for vengeance. If we yield to the tiei-ce temptation, the war will become 
one of extermination. Thus far, while prosecuting the war with vigor, we have shown 
the moderation and humanity' becoming a great people. I pray we may continue in this 
course. There is wisdom in the fable of the sun and the north wind. There is power in 
forbearance, in magnanimity, in obedience to the law we seek to enforce, in the spirit of 
forgiveness, in the ''mercy which seasons justice " Christ knew what is in man; the 
Gospel is not a lie. There never was a juster war than that which we are waging. 
It is strictly a war of self-defence — the defence of a free and benificent Governinen 
against traitors in ai ms against her. But we may not forget that to those in the southern 
States who believe in the right of secession this war cannot but wear the aspect of a war 
of invasion and subjugation. This terrible mistake may account for their bitterness, 
though it is no palliation for their barbarities. 

Mr. Speaker, upon no subject has there been more or looser declamation than on the 
causes of this rebellion. At one moment we are assured that slavery is the one great 
criminal, at the next tliat it was brought about by the fraud, falsehood, and violence of 
a few unprincipled leaders. 

Passing this subject now with the remark that masses of men are not easily moved, 
that civil convulsions are fed by deeper fires, I ask your attention to two facts which 
seem to be clearly established. The first is, that when the acts of secession were passed 
the majority of tlie people of the revolting States, witli the exception of South Carolina, 
were loyal to the Union ; and the second is, that to-day their feelings are changed, their 
loyalty turned to treason and love to hate. Passion is eloquent; but do not content 
j'ourselves with bitter denunciation. Pause, I beseech and adjure you, and inquire what 
is the cause. 

The war brought to their homes and firesides will account for much ; but do you not 
believe that a conviction has been settling down into the minds of men, who i.t the be- 
ginning of our troubles were loyal, that these extreme measures point to some other f^nd 
than the restoration of the Union with the rights of the States preserved ; that they mean 
subjugation and reconstruction "by permission of the nulitary power, and not before? 
Once committed to this policy, once afloat on that sea of revolution, neither you nor I 
may live to i-each the haven of Union and peace. 

If these measures shall be finally adopted, I pray God I may prove a false prophet, 
and that out of this nettle danger we may pluck the flower safety: that His strength may 
be mainfested in our weakness, and that He may overrule all our errors and shortcomings 
for the good of our beloved country. 

L. TowKES & Co., Piiuters. 



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